Congress and the Administration Agree: the Government Can Indefinitely Detain US Citizens

I’ve got a long post mostly written on the debate between two awful positions on the detainee provisions in the Defense Authorization.

But let me make something clear. Both sides have already bought off on one principle: that the Administration can indefinitely detain US citizens.

Dianne Feinstein made this clear in her comments yesterday in the Senate (in which she was reading from a letter SJC and SSCI Democrats wrote).

Section 1031 needs to be reviewed to consider whether it is consistent with the September 18, 2001, authorization for use of military force, especially because it would authorize the indefinite detention of American citizens without charge or trial …..

And yet while in the rest of her speech, DiFi laid out problems she had with sections 1032 (mandating military detention in most cases), 1033 (requiring certification before DOD transfers detainees to a third country), and 1035 (giving DOD precedence in detainee decisions), she made not a peep objecting to (as opposed to raising cautions about) this ability to indefinitely detain American citizens.

In response to DiFi’s speech and the Administration’s veto threat, Carl Levin revealed that the Administration’s complaints about the language authorizing military detention don’t stem from any squeamishness about indefinitely detaining Americans. Indeed, as Levin made clear, the Administration asked that limitations on applying the section to Americans be taken out of the bill.

The committee accepted all of the Administration’s proposed changes to section 1031.  As the Administration has acknowledged, the provision does nothing more than codify existing law.  Indeed, as revised pursuant to Administration recommendations, the provision expressly “affirms” an authority that already exists.  The Supreme Court held in the Hamdi case that existing law authorizes the detention of American citizens under the law of war in the limited circumstances spelled out here, so this is nothing new.

The initial bill reported by the committee included language expressly precluding “the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.”  The Administration asked that this language be removed from the bill. [my emphasis]

And given that SASC already voted to support this section by significant margins, it appears clear it has plenty of support.

So make no mistake. As I’ll show in my longer post, there are clear differences between the two sides (though I find both sides problematic). But whether or not the government can indefinitely detain Americans is not one of them.

Update: I took out “militarily,” as 1032 exempts automatic military detention for US citizens.

Tweet about this on Twitter0Share on Reddit0Share on Facebook0Google+0Email to someone

14 Responses to Congress and the Administration Agree: the Government Can Indefinitely Detain US Citizens

  • 1
  • 2
  • 3
  • 4
  • 5
  • 6
  • 7
  • 8
  • 9
  • 10
  • 11
  • 12
  • 13
  • 14
Emptywheel Twitterverse
bmaz @GrantWoods They are really good, even in an acoustically constrained place like Tarbell's Tavern.
1hreplyretweetfavorite
JimWhiteGNV RT @nytimesworld: Open Source: Iranian Photojournalist Reportedly Detained After Covering Protest Against Acid Attacks http://t.co/Flm5CbCE
3hreplyretweetfavorite
JimWhiteGNV RT @KendallRogersPG: So, @TCU_Baseball's Brandon Finnegan becomes the first player in history to pitch in the @NCAACWS and @WorldSeries in …
4hreplyretweetfavorite
bmaz Hey @GrantWoods Im here at Tarbell's Tavern w/Scotty, Kira+Honeygirl band. Pretty fucking good. You should be here. http://t.co/r1hLjx7J4Z
4hreplyretweetfavorite
JimWhiteGNV RT @CDCgov: What’s the difference between infections spread through the air or by droplets? New CDC #Ebola fact sheet explains: http://t.co
4hreplyretweetfavorite
JimWhiteGNV RT @AdamWeinstein: Rick Scott filed suit to keep his emails secret, skipped out on deposition today, lied that he didn't need to attend htt…
4hreplyretweetfavorite
JimWhiteGNV RT @BretSabes: Birthday present for himself @TheRealHos35 #GreatAB
4hreplyretweetfavorite
JimWhiteGNV Don't give up on the only lifting you even do, bro! RT @michaelwhitney: I think I am going to invest in pet stairs for @dirtmcgirt :(
5hreplyretweetfavorite
JimWhiteGNV @wheeliesmom Of course not. But the "invisible hand of the market" would never tolerate opting out before voting.
5hreplyretweetfavorite
JimWhiteGNV I'd pay $10 for a TV app that filters out political ads now that I've already voted...
5hreplyretweetfavorite
JimWhiteGNV RT @davidsirota: Docs show show @ScottWalker got $200k from restaurant industry then based min wage ruling on restaurant lobby study http:/…
5hreplyretweetfavorite
November 2011
S M T W T F S
« Oct   Dec »
 12345
6789101112
13141516171819
20212223242526
27282930